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No. 14-55644
D.C. No.
8:12-cv-01897JVS-RNB
OPINION
*
The Honorable Algenon L. Marbley, United States District Judge for
the Southern District of Ohio, sitting by designation.
Civil Rights
The panel reversed the district courts judgment, entered
following a jury trial in favor of defendants, in an action
alleging that a City of Anaheim police officer used excessive
force when he shot and killed Manuel Diaz.
The panel held that the district court erred by refusing to
bifurcate the liability phase from the compensatory damages
phase of the trial and as a result the district court admitted
inflammatory evidence introduced by the defendants that had
no relevance to the key issue in the case, whether defendant
acted within the law when he shot Diaz.
The panel remanded for a new trial with guidance for the
district court to: (1) closely review under Federal Rule of
Evidence 401 and 403 evidence of Diazs drug and gang
affiliation and admit the evidence only to the degree that it
was connected to the reaction of Diazs mother to his death;
(2) not permit expert testimony about gangs to be admitted if
plaintiffs are willing to stipulate that Diaz was a gang
member; (3) sufficiently consider that a limiting instruction
may not sufficiently mitigate the prejudicial impact of certain
evidence; and (4) when striking testimony, to clearly identify
what testimony was improperly given, and instruct the jury
that it may not be considered.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
COUNSEL
Dale K. Galipo (argued) and Melanie T. Partow, Law Offices
of Dale K. Galipo, Woodland Hills, California; Angel
Carrazco, Jr., Carrazco Law, A.P.C., Tustin, California; Paul
L. Hoffman, Schonbrun Desimone Seplow Harris &
Hoffman, LLP, Venice, California; Humberto Guizar,
Humberto Guizar Law Offices, Montebello, California; for
Plaintiffs-Appellants.
Moses W. Johnson, IV (argued), Assistant City Attorney,
Anaheim, California; Steven J. Rothans and Jill Williams,
Carpenter, Rothans & Dumont, Los Angeles, California; for
Defendants-Appellants.
OPINION
OWENS, Circuit Judge:
Anaheim Police Officer Nicholas Bennallack shot and
killed Manuel Diaz during a mid-day encounter in July 2012.
Diazs estate and mother (Plaintiffs) sued Officer
Bennallack and the City of Anaheim (Defendants) for
federal civil rights violations and proceeded to a jury trial, but
lost. Plaintiffs argue they should receive a new trial due to
As the officers chased Diaz, they could not see his hands.
Based on how Diazs arms were not pumping as expected
and the outward position of his elbows, Bennallack claimed,
he thought Diazs hands were in his waistband. Another
witness did not see Diaz put his hands at his waistband. Both
officers said that Diaz looked back at them while he was
running away, which they took as his attempt to acquire a
target.
The officers yelled commands such as stop, get on the
ground, and show me your hands, but Diaz kept running,
and eventually went through a gate and into a courtyard.
Bennallack was roughly five to ten feet behind Diaz during
the chase. Bennallack testified that at one point, Diaz
possibly could have exited through a gate to the street, but did
not.1 The officers took this as an escalation of danger, fearing
that Diaz was hoping to lure them into an enclosed space to
shoot them.
Diaz then slowed down. Witnesses disagreed about his
movements at this point. Bennallack said Diaz turned to his
left, while Heitmann said he turned to his right. One witness
did not see him turn or make any threatening movements,
while another saw Diaz turn in a non-threatening manner
when the police told him to get on the ground.
As Diaz started to turn, Bennallack claimed to see a black
cloth object going over a fence close to Diaz . Bennallack
said that he believed Diaz had a gun in a low-ready position
in front of his body, ready to fire. According to Bennallack,
as Diaz turned and Bennallack saw the object in the air, he
fired twice. When Bennallack shot Diaz, he could not see
1
Bennallack did not recall whether that gate was open, closed, or ajar.
any part of his arms or hands. The shots occurred within one
to two seconds after Diaz started to slow down; Bennallack
made no lethal force warning. The first bullet entered Diazs
right buttock and was lodged in his left thigh. The second
bullet entered the right side of Diazs head, just above and
behind his right ear, and exited the left side of his head near
his left ear. Diaz was handcuffed and searched. He died
shortly thereafter at a nearby hospital. Officers found a black
cell phone and narcotics pipe nearby. No firearm was
recovered from the scene.
B. Pretrial Litigation
Diazs estate and his mother, Genevieve Huizar, brought
suit against the City of Anaheim and Officer Bennallack.2
Huizar sought only non-economic damages, i.e., her loss of
Diazs love, companionship, comfort, care, assistance,
protection, affection, society, and moral support.
A number of Plaintiffs claims were disposed of by
stipulation and the district courts partial grant of Defendants
motion for summary judgment. By trial, Plaintiffs remaining
claims included three claims under 42 U.S.C. 1983
(excessive force and unreasonable detention under the Fourth
Amendment and unlawful interference with familial relations
c. Trial
After a six-day trial, the jury deliberated for less than two
hours before returning a verdict that Officer Bennallack did
not use excessive or unreasonable force.4 However, during
trialand over Plaintiffs repeated objectionsthe district
courts evidentiary rulings strayed from its pretrial rulings.
As a result, the jury was exposed to a copious amount of
inflammatory and prejudicial evidence with little (if any)
relevance.
i. Improper Evidence of Diazs Gang
Membership
The most troubling evidence admitted at trial related to
Diazs gang membership. There was wide-ranging testimony
from Defendants gang expert, Gonzalez. There were also
photographs featuring Diazs tattoos and him posing with
guns and throwing gang signs, none of which Bennallack
knew about or had seen when he shot Diaz.
In ruling on the motions in limine, the district court held
that evidence of Diazs gang affiliation was relevant only to
damages, because Officer Bennallack did not know he was a
gang member. The court also specifically excluded evidence
of Diazs gang tattoos themselves, such as photographs,
because such evidence was unnecessary to establish the fact
that he was a gang member. The court later recognized
generally that [p]hotographs have the potential for both
relevant evidence and gratuitous provocation of the jury.
4
The parties agreed that the jury finding regarding excessive force
would also be dispositive of the state battery claim.
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The timing and rationale underlying the courts final ruling is not
evident from the record on appeal. Defendants had argued that Diazs
drug use was relevant to Ms. Huizars claim for the loss of her relationship
with her son, particularly in light of her testimony that Diaz was often not
permitted to live with her and her husband in part because he did not
follow their rule banning drug use.
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See, e.g., Barnett v. Norman, 782 F.3d 417, 42223 (9th Cir. 2015)
(outlining powers of district judge to ensure witness complies with court
order); United States v. Panza, 612 F.2d 432, 439 (9th Cir. 1979) (We
can only speculate as to the effect on the jury of the striking of the
testimony. (citing United States v. Cardillo, 316 F.2d 606, 612 n.3 (2d
Cir. 1963)); Cardillo, 316 F.2d at 612 n.3 (The effectiveness of such
procedures after the testimony has been heard by the jury has been the
subject of speculation, metaphysical and otherwise, by jurists and trial
lawyers for generations.).
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Cf. United States v. McKoy, 771 F.2d 1207, 1213 (9th Cir. 1985) (We
have often noted that the trial court may be able to neutralize the effect
of improper prosecutorial remarks by admonishing counsel to refrain from
such remarks or by giving appropriate curative instructions to the jury.).
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CONCLUSION
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